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The US Supreme Court surprised some with the agreement to hear not one but two cases on the issue of same-sex marriage. Both sides of the national debate are hoping these will provide landmark decisions. One case deals with the Defense of Marriage Act (DOMA) while the other deals with the infamous California Proposition 8 which banned same-sex marriage in the primarily liberal state. “Prop 8” garnered so much unfavorable publicity that it spawned a national movement, NO H8, whose pictures have gone viral world-wide. A lower court struck down Prop 8 but the matter has appealed its way to the Supreme Court. Hearing a DOMA case was practically a given as the court does tend to review a lower court’s efforts to strike down a federal law, but Prop 8 was a bit of a surprise.

While legal analysts would have bet on the court hearing DOMA to see how the law holds up before reviewing Hollingsworth v. Perry, they were surprised to find No 12-144 up first. The oral arguments seemed to indicate that it was the conservative justices that wanted to hear the case. It only takes 4 justices to agree to hear a case while 5 are needed to reach a decision. Conservatives probably do not see a better time than now, especially with a liberal president in the White House. While concerns were voiced in the courtroom about the decision to even hear the case, the real telling point will come when the ruling is handed out. Are some high court justices willing to set aside the lower court’s decision and therefore uphold Prop 8?

The issue in this case is whether there is a constitutional right to same-sex marriage. The courts have held in the past that marriage is the business of the state and not the federal government. If there is no constitutional guarantee, then California may have the right to pass such a ban. Despite the concern about the federal government interfering in states rights, the Supreme Court may have enough room to wiggle off this hook. There could be a narrow decision regarding the principles of this case, while they throw the rest of the mess back at California. If they put aside the lower court’s decision, and do not clearly ban a Prop 8 type law, the fight could begin a new. Although it may be hard to do after hearing oral arguments, they may decide the case was “improvidently granted” and walk away. Law professors and legal analysts do not see that as likely. Still, they could decide that the Prop 8 supporters had no standing to appeal the case. Any broad-based decision in favor of the lower court and against Prop 8 will have immediate implications on DOMA.

The justices will look at whether DOMA improperly interferes with states rights and/or whether it creates a separate and unequal class of Americans. There seems to be nowhere to hide in this matter. The party who has brought the case is the party who has claimed discrimination and DOMA is at the center of the mess. With so many friend of the court briefs already filed, the high court finds itself snowed under the public sentiment that has mounted on both sides. Sending the Prop 8 mess back to the west coast will undoubtedly mean that the court must tackle this one head on. There seem to be suggestions in the comments from the justices that DOMA is about to get the boot.

Edie Windsor and Thea Spyer were partners for 44 years. In 2007 they were married in Canada. Subsequently, their marriage was recognized in New York where they lived. Two years after marriage, Thea died. She had multiple sclerosis which led to paralysis and death. Following this tragic ordeal and decades of caring for her partner, the federal government came in to tax Thea’s estate as if Edie Windsor was a stranger with no particular rights to the property. Under a federal law a spouse can leave assets to the other spouse without such taxes. The determining factor in this type of case usually is whether the state sees the marriage as valid. Although New York saw the two women as married, the federal government did not. DOMA is the reason. With an army of legal support Edie is challenging DOMA and seeking a refund of the taxes she feels she was illegally forced to pay. Here the court can uphold Edie’s appeal and rule that DOMA is discriminatory and is unconstitutional.

The Court of Public Opinion

When the court heard oral arguments on Hollingsworth v. Perry, supporters on both sides as well as news outlets from around the country and around the world, decided to hold court on the courthouse steps. Some sounded as if they were there to show the court how to decide. Statements were made that the justices should take into account the growing public sentiment for same-sex marriage, or support the more traditional interpretation of marriage. As people descended upon the court to try to influence the outcome, they forgot a basic part of their civics lesson (Do we still teach civics?).

The Supreme Court does not conduct a straw poll, Gallup Poll or any other type of survey. They do not count the numbers of supporters on the courthouse steps. They do not read the signs and banners on display out front. If they listen to the press at all, they likely take little, if any, of it into account. None of that is part of their job description. They are there to uphold the Constitution of the United States. They will decide whether the court has a right to take a position on a case. They will decide if lower court decisions regarding federal laws are correct. They will decide if federal laws (DOMA, for example) are constitutional. They will not be swayed by any “God hates Fags” signs or Rainbow flags. The essence of the Supreme Court is to deal strictly with the law and its application. If they are swayed by public opinion, then they are not at all Supreme. They are there to follow the Constitution and if we do not like the Constitution, it is our right to amend it.

And in the end…

Both sides may walk away disappointed. Ruling that the supporters of Proposition 8 have no legal standing, or at least not in the case before the Supreme Court now, may return things to status quo in California. If they set aside the lower court ruling, the battle of Prop 8 will be renewed. As for DOMA, striking it down with the opinion that the federal government has no right to refuse to recognize a marriage that is legal in a state, means that every state can be a battle ground and that gay marriage has to be won one state at a time. One thing is certain in all of this, no matter what the court rules in these two cases, the issue of same-sex marriage will not have been decided, not completely anyway.

Note: Edie Windsor paid a 350,000 dollar tax bill because her spouse was a woman. The ACLU and others have come to her defense and hope to win it back for her as well as gain a landmark decision. If you wish to hear the argument before the Supreme Court, in order to know what the justices have heard, listen here.

[…] v. United States, No. 12-307), the Sunday Night Blog offered an opinion on another important case U.S. Supreme Court v. Public Opinion. The first case dealt with California’s Proposition 8 which eliminated the right of […]

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